147 N.Y.S. 773 | N.Y. App. Div. | 1914
The judgment appealed from directs that the defendant be enjoined and restrained from continuing, maintaining and using an addition to a building erected by him upon his premises, and further directs that he remove said addition therefrom and that plaintiffs recover their costs of the action.
The premises of defendant, upon which the structure complained of was built by him, are situated at the corner of South avenue and Alpine street in the city of Rochester, having a frontage to the west on South avenue of 60 feet, and to the south on Alpine street of' about 183 feet. Defendant’s father, Merritt E. Graham, who was, as defendant now is, a physician, bought in August, 1899, of Lewis E. Smith, the father of the
This action is brought to restrain an alleged violation of certain restrictive building covenants contained in these deeds. These covenants appearing in the deed firstly above referred to are, so far as material to the present inquiry, as follows: “ That no alcoholic or malt liquors shall be * * * sold upon said premises. That no mercantile or manufacturing business shall be carried on upon said premises within thirty-five years from the date hereof. That no building other than a dwelling and the usual outbuildings thereto pertaining shall be erected upon said premises within fifty years from the date hereof. * * * The covenants, exceptions, restrictions and reservations herein contained are to rim with the land and shall be for the benefit of all persons owning lands upon Alpine Street or South Avenue, as well as for the benefit of the parties hereto and shall bind the heirs, executors, administrators and assigns of the parties hereto. Nothing herein contained shall be construed as in any wise restricting the right of the party of the second part to receive and care for medical and surgical patients and perform surgical operations on the premises above described.”
The grantee in this deed built a frame structure upon the lot, having three stories and a mansard, i. e., a building, in effect, four stories in height. This structure was occupied by himself and family as their dwelling and he also there received and treated medical and surgical patients up to the time of his death, which occurred August 3, 1905. The covenant appearing in the second deed is as follows: “ That no structure whatever shall ever be erected upon the premises hereby conveyed,”
The limitation of the operation of restrictive covenants contained in this deed to the effect that the right of the grantee to receive and care for medical and surgical patients and perform medical and surgical operations on the premises should not be restricted by such covenants did not enlarge the rights of the grantee beyond what they would have been had this saving clause not been inserted. Only a dwelling with necessary outbuildings could be erected on these'premises as the deed provides. But it would seem to be true that a dwelling, so long as it is used as such, may be also used as a place for carrying on some kinds of business provided such business is of such character as to be no inconvenience to • neighboring property holders. As is suggested in Dorr v. Harrahan (101 Mass. 531), such a house “might be occupied by a physician, or a lawyer, perhaps by a chemist or photographer, and a portion of it set apart as an office or place of business without any offence or objection. All this would be allowable under the deed. ” So, perhaps, it may be true, though it is unnecessary in this action to determine the question, that defendant’s father was within his rights in erecting the original building and using it for the reception and care of medical and surgical patients in connection with his occupancy of it as a dwelling; and that, too, though he appears to have maintained thereon a sign indicating that it was a sanitarium. (Carr v. Riley, 198 Mass. 70.) But a hospital is still distinct and different from a dwelling. It is not understood to be a dwelling in the usual acceptation of the meaning of that term. (Barnett v. Vaughan Institute, 119 N. T. Supp. 45; affd. on opinion of Thomas, J., delivered at Special Term, 134 App. Div. 921, and again affd. 197 N. Y. 541.) Whatever the original building on the lot may be considered to be, certainly there is no question as to what the new erection complained of was intended to be and is. Defendant states in his application what it is intended to be. As erected it shows what it is. By no flight of imagination could it be regarded as a dwelling. It is, as it was dubbed by its builder, a hospital and nothing else. As such it offends
Nor should defendant escape the penalty of his violation of the restrictions. He had constructive notice of them, which would have been sufficient to charge him with knowledge of their terms, for they appear in the deeds through which he claims title. (Holt v. Fleischman, 75 App. Div. 593, 599; Simmons v. Crisfield, 123 id. 201; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35.) Actual notice both orally and in writing was also given him that he had no right to erect this building at the early stages of its construction. Within a few days thereafter this action was begun. In such a case, especially, there should he no weighing of damages, which might accrue to the respective parties by withholding or granting an injunction in determining whether it should issue or not. (Whalen v. Union Bag & Paper Co., 208 N. Y. 1.)
There is no suggestion on the part of defendant of a desire to utilize the structure in a way not forbidden by the restrictions. Therefore, we need not consider whether a modification of the order so as to permit such use might be accorded, as it is not asked. Defendant insists on his right to use the building for the sole purpose for which it was constructed. He has no such right; therefore, he should remove it.
The judgment should he affirmed, with costs.
All concurred, except Kruse, P. J., and Foote, J., who dissented and voted for modification of the judgment by requiring the building to he removed to the extent that it encroaches upon the twelve-foot strip and limiting the use of the remainder in accordance with the restrictive covenants contained in the deed.
Judgment affirmed, with costs.